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CASE NO.: Appeal (civil)  6736 of 1999

PETITIONER: Manicka Poosali (Dead) by LRs. & Others  

RESPONDENT: Anjalai Ammal & Another                          

DATE OF JUDGMENT: 17/03/2005

BENCH: ASHOK BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T

BHAN, J.

       This appeal by grant of leave has been filed by  the original defendants-the appellants herein,  against the judgment and decree of the High Court at  Madras granting preliminary decree of partition and  separate possession to plaintiffs-the respondents  herein, with respect to certain suit properties  setting aside the judgment and decree of Trial Court  as well as that of Lower Appellate Court, wherein  aforesaid decree with respect to same properties had  been denied to respondents.   Facts necessary for the disposal of this appeal are  as follows:            One Thandavaraya Poosali had three sons Mottaya  Poosali, Ayyasamy Poosali and Ammasi Poosali.  In  the present case, the dispute is between the  children of Mottaya Poosali over the division of  property inherited by them.  Mottaya Poosali had two  sons Manicka Poosali, Sadaya Poosali and a dauthter,  Ellammal.  Sadaya Poosali died on 9.5.1962 leaving  behind his widow and daughter respondent nos.1 and 2  respectively.  Appellants are Manicka Poosali,  appellant No.1(since deceased and now represented  through his LRs., his wife Mahalakshmi, appellant  No.3 and Ellammal, his sister and appellant No.2  herein.  They would be referred to as the  ’appellants’ herein.

Through a registered partition deed dated  19.07.1970 between Mottaya Poosali and his brothers,  Plaint A Schedule item Nos.11 to 21 and 28 were  allotted to Mottaya Poosali out of their joint  family properties.  Mottaya Poosali executed a  settlement deed dated 22.03.1977 in favour of  Manicka Poosali conveying his share in Plaint A  Schedule item nos.11 to 14, 17 to 20 and 28 allotted  to him in partition dated 19.07.1970.  Further  Mottaya Poosali executed a registered will dated  23.03.1977 bequeathing his share in Plaint A  Schedule item nos.15, 16 and his self acquired  properties item nos. 22 to 26 and 29 in favour of  Manicka Poosali. Mottaya Poosali died on 01.11.1978.   

In 1980, respondents instituted original suit

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no.806/1980 against appellants for partition and  separate possession of their share in respect of  whole Plaint A and B Schedule items.  

In the plaint, it was averred that Plaint A  Schedule item nos.1 to 9 were joint family  properties of Mottaya Poosali and Plaint A Schedule  item nos.10 to 29 were allotted to Mottaya Poosali  in partition dated 19.07.1970 and after his death  they are entitled to a share in those properties.   It was further averred that settlement deed dated  22.03.1977 executed by Mottaya Poosali in favour of  Manicka Poosali is valid only to extent of 1/3   share of Mottaya Poosali and will dated 23.03.1977  executed by  Mottaya  Poosali  in favour  of   Manicka  Poosali is  not valid and at best could be  valid with respect to 1/3 share of Mottaya Poosali  since the said properties were joint family  properties.  Respondents prayed for a decree of  partition and separate possession of 4/9 share in  Plaint A Schedule item nos.1 to 14, 17 to 21 and 27  to 29 and Plaint B Schedule items and to an extent  of 1/3 share in Plaint A Schedule item nos.15, 16,  22 to 26 and 29 alongwith future income and costs of  suit.

       In the written statement, filed by appellant  no.1 and adopted by appellant no.3, wife of  appellant no. 1, it was averred that all the  properties included in Plaint A and  B Schedules  were not joint family properties and respondents are  entitled to claim a share only with respect to  Plaint A Schedule item nos.11 to 21 and 28 which  were allotted to Mottaya Poosali under partition  deed dated 19.07.1970 and respondents are in joint  possession with respect to these properties only.   That Plaint A Schedule item nos.1 to 9 were self  acquired properties of appellant no.1 and 3  purchased out of their own funds prior to 1970 and  not out of joint family funds.  The same were not a  part of larger Joint Hindu Family properties and for  this reason they were not included in partition  dated 19.07.1970.  That Plaint A Schedule item  nos.22 to 26 and 29 were the self acquired  properties of Mottaya Poosali purchased prior to  1970 out of his separate funds earned by purchasing  the produce of tamarind trees on highway roads and  selling them in the open market.  These items were  also not included in the partition dated 19.07.1970.   That settlement deed dated 22.03.1977 and registered  will dated 23.03.1977 executed by Mottaya Poosali in  favour of appellant no.1 are true and valid,  executed by Mottaya Poosali in sound disposing mind  on his own after understanding the contents of the  same. That respondents cannot claim any share in  Plaint B Schedule items  and Plaint A Schedule item  nos. 10 and 27 are not owned by family now and were  wrongly claimed in Plaint.   

Trial Court on appraisal of evidence partly  decreed the suit of respondents.  Trial Court held  that Plaint A Schedule item nos. 1 to 9 were self  acquired properties of appellant nos.1 and 3 and  Plaint A Schedule item nos. 22 to 26 & 29 were self  acquired properties of Mottaya Poosali.  That

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settlement deed dated 22.03.1977 and will dated  23.03.1977 executed by Mottaya Poosali in favour of  Manicka Poosali were valid and genuine and  respondents are not entitled to any share in  properties included in both the deeds.  That  respondents were entitled to preliminary decree for  partition and separate possession of 7/27 share only  in Plaint A Schedule i\tem nos.11 to 21 and 28 which  were allotted to Mottaya Poosali vide partition  dated 19.07.1970 and also to the extent of 7/27  share in Plaint B Schedule items.  

Being aggrieved, respondents preferred Appeal  Suit no. 162/1983, wherein issue as to the right of  respondents to claim share in Plaint A Schedule  i\tem nos. 1 to 9, 18, 22 to 26 and 29 was raised.  

Appellate Court partly allowed the appeal of  respondents upholding the findings of Trial Court  with respect to all properties, except Plaint A  Schedule i\tem no 10. Plaint A Schedule i\tem no. 10  was also found by Appellate Court to be forming part  of the joint family property of Mottaya Poosali  along with Plaint A Schedule i\tem nos. 11 to 21 and  28 allotted to him vide partition dated 19.07.1970.  Appellate Court observed that Plaint A Schedule  i\tem nos. 1 to 9 were self acquired properties of  appellant nos. 1 and 3 and Plaint A Schedule i\tem  nos. 22 to 26 and 29 were self acquired properties  of Mottaya Poosali and settlement deed dated  22.03.1977 and will dated 23.03.1977 executed by  Mottaya Poosali in favour of Manicka Poosali were  valid. Further it was observed that though  respondents were entitled to < share in Plaint A  Schedule i\tem nos. 10 to 21 and 28, but since no  cross appeal is preferred by appellants agitating  the quantum of share, respondents were entitled to  take the share as given by Trial Court.   Respondents preferred Second Appeal no.  1017/1985 against judgment and decree of Appellate  Court. High Court, while admitting the appeal,  framed following substantial question of law:

Whether the lower appellate Court was right in  holding that the appellants are not entitled to  any share in items 1 to 9, 22 to 26 and 29 of  the plaint "A" schedule properties on the  footing that they were not joint family  properties available for partition?

High Court partly allowed the second appeal  filed by respondents with costs. High Court granted  preliminary decree of partition to respondents to  the extent of 4/9  share with respect to Plaint A  Schedule i\tem nos. 10 to 29.  It was held that  Plaint A Schedule i\tem nos. 22 to 26 and 29 were  purchased by Mottaya Poosali out of joint family  nucleus and thus were not his self acquired  properties. That the settlement deed dated  22.03.1977 was void in law as the items mentioned  therein formed coparcenary property and no  coparcener, like Mottaya Poosali, could dispose of  his undivided interest by way of gift.  It was also  held that Plaint A Schedule i\tem nos. 1 to 9 were  self acquired properties of appellants 1 and 3 and

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thus not amenable to partition.   High Court though  found the will dated 23.03.1977 to be duly executed  and proved but observed that the same was not  genuine and valid as it was surrounded by numerous  suspicious circumstances and appellants failed to  wipe off the clouds of suspicion, surrounding the  will.  

Being aggrieved by the findings of High Court  with respect to settlement deed, will and Plaint A  Schedule i\tem nos. 22 to 26 and 29, this appeal has  been preferred by original defendants.  Learned Counsel for appellants has put forth  his two fold contentions before us in the following  terms:

1)      High Court has exceeded its jurisdiction while  sitting as Second Appellate Court by reversing  the concurrent finding of fact recorded by both  the Courts below after reappraising the entire  evidence and holding that Plaint A Schedule  i\tem nos. 22 to 26 and 29 were not the self  acquired properties of Mottaya Poosali and were  purchased by him out of joint family nucleus.

2)      High Court has gone beyond the mandate of S.  100 Civil Procedure Code, 1908 by needlessly  addressing the questions of genuineness and  validity of settlement deed and will of Mottaya  Poosali despite the fact that no substantial  question of law, with respect to same, was  framed either at the time of admission or at  the time of hearing of the Second Appeal.      

Section 100 of the Code of Civil Procedure  provides that the second appeal would lie to the  High Court from a decree passed in an appeal by any  court subordinate to the High Court, if the High  Court is satisfied that the case "involves a  substantial question of law".  Bare perusal of  Section 100 of the Code makes it clear that the High  Court cannot proceed to hear a second appeal without  formulating the substantial question of law involved  in the appeal.  Section 100 reads :- "100. Second Appeal \026 (1) Save as otherwise  expressly provided in the body of this Code or  by any other law for the time being in force,  an appeal shall lie to the High Court from  every decree passed in appeal by any court  subordinate to the High Court, if the High  Court is satisfied that the case involves a  substantial question of law.

(2)     An appeal may lie under this section from  an appellate decree passed ex-parte.

(3)     In an appeal under this section, the  memorandum of appeal shall precisely state the  substantial question of law involved in the  appeal.

(4)     Where the High Court is satisfied that a  substantial question of law is involved in any  case, it shall formulate that question.

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(5)     The appeal shall be heard on the question  so formulated and the respondent shall, at the  hearing of the appeal, be allowed to argue  that the case does not involve such question:

       Provided that nothing in this sub-section  shall be deemed to take away or abridge the  power of the Court to hear, for reasons to be  recorded, the appeal on any other substantial  question of law, not formulated by it, if it  is satisfied that the case involves such  question."

Clause 3 of Section 100 provides that the  memorandum of appeal shall precisely state the  substantial question of law involved in the appeal  and the High Court on being satisfied that the  substantial question of law is involved in a case  formulate the said question.  Sub-section (5)  provides that "the appeal shall be heard on the  question so formulated."    It reserves the liberty  with the respondent against whom the appeal was  admitted ex-parte and the question of law was framed  in his absence to argue that the case did not  involve the question of law so framed.  Proviso to  sub-section (5) states that the question of law  framed at the time of admission would not take away  or abridge the power of High Court to frame any        other substantial question of law which was not  formulated earlier, if the court is satisfied that  the case involved such additional questions after  recording reasons for doing so.  A reading of  Section 100 makes it abundantly clear that if the  appeal is entertained without framing the  substantial question of law, then it would be  illegal and would amount to failure or abdication of  the duty cast on the court.  In a number of  judgments it has been held by this Court that the  existence of the substantial question of law is the  sine qua non for the exercise of jurisdiction under  Section 100 of the Code of Civil Procedure. { Refer  to Kshitish Chandra Purkait  v.  Santosh Kumar  Purkait & Ors. [(1997) 5 SCC 438], Panchugopal Barua   v. Umesh Chandra Goswami [(1997) 4 SCC 413], Kondiba  Dagadu Kadam  v.  Savitribai Sopan Gujar [(1999) 3  SCC 722], Santosh Hazari  v.  Purushottam Tiwari  (Deceased) By LRs. [(2001) 3 SCC 179], Thiagarajan &  Ors.  v. Sri Venugopalaswamay  B. Koil & Ors.  [(2004) 5 SCC 762]}.

       In Santosh Hazari’s case (supra) a three Judge  Bench of this court after examining the provision of  Section 100 exhaustively has concluded that the  scope of hearing of the second appeal by the High  Court is circumscribed by the questions formulated  by the High Court at the time of the admission of  the appeal and that the High Court has to hear the  appeal on the substantial questions of law so  framed.  That the High Court would be at liberty to  hear the appeal on any other substantial question of  law, not earlier formulated by it, if the court is  satisfied of two conditions i.e.  (i) the High Court  feels satisfied that the case involves such  question, and (ii) the High Court records reasons  for its such satisfaction.

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        This judgment was followed by this Court in  Civil Appeal No.2292 of 1999 [Govindaraju  Vs.   Mariamman, (2005)  2 SCC 500] decided on 4th  February, 2005.  In Govindaraju’s case (supra) it  has been held that the High Court while exercising  its powers under Section 100 of the Code of Civil  Procedure on re-appreciation of the evidence cannot  set aside the findings of the fact recorded by the  first appellate court unless the High Court comes to  the conclusion that the findings recorded by the  first appellate court were perverse i.e. based on  misreading of evidence or based on no evidence.  

       Coming to the facts of the present case, we  find that the two courts on appreciation of the  entire evidence came to the conclusion that the  Plaint A Schedule properties at item nos.22 to 26  and 29 were self acquired properties of Mottaya  Poosali and were not purchased with the funds of the  Joint Hindu Family.  The High Court, on re- appreciation of evidence has held that these  properties were not the self acquired properties of  Mottaya Poosali and were purchased with the funds of  the Joint Hindu Family.  Apart from the fact that  the High Court on re-appreciation of evidence could  not set aside the findings recorded by the courts  below on facts, the fact that these properties were  the self acquired properties is demonstrated by the  fact that the properties at item nos.22 to 26 and 29  were purchased by Mottaya Poosali between 29th  April, 1953 to 19th January, 1956.   Item nos.23 &  24 were purchased vide sale deed (Ex.B-12) dated  04.06.1952, item no.22 was purchased vide sale deed  (Ex.B-13) dated 29.4.1953, item no.26 was purchased  vide sale deed     (Ex.B-14) dated 20.01.1955 and  item nos. 25 & 29 were purchased vide sale deed  (Ex.B-15) dated 19.01.1956. During this period  Mottaya Poosali was a member of the Joint Hindu  Family consisting of himself and his two brothers  Ayyaswamy Poosali and Ammasi Poosali.  The partition  between Mottaya Poosali, Ayyaswamy Poosali and  Ammasi Poosali took place in the year 1970.  Had  these properties been purchased with the funds of  the Hindu Joint Family property, then the same would  have formed part of the Joint Hindu Family  consisting of Mottaya Poosali, Ayyaswamy Poosali and  Ammasi Poosali.  In the registered partition deed  dated 19th July, 1970 between Mottaya Poosali,  Ayyaswamy Poosali and Ammasi Poosali these  properties were treated to be the self acquired  properties of Mottaya Poosali and were not subjected  to the partition.  Mottaya Poosali in partition was  allotted properties item nos.11 to 21 and 28 only.   This clearly demonstrates that the properties item  nos.22 to 26 and 29 were the self acquired  properties of Mottaya Poosali and were treated by  him as such throughout.  Being the self acquired  property, Mottaya Poosali had the absolute right to  dispose them of  in any manner he liked i.e. by way  of sale, gift or will. The findings recorded by the  High Court that these properties were acquired with  the funds of Joint Hindu Family is factually  incorrect and the finding recorded  by the courts  below on facts were correct and the High Court has

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clearly erred in reversing the same.  The counsel  for the appellants is right in his submission that  the High Court has overstepped in the exercise of  its jurisdiction in reversing the concurrent  findings of fact recorded by the courts below in a  second appeal filed under Section 100 CPC.         Coming to the second point raised by the  counsel for the appellants, it may be stated that  the trial court as well as the first appellate court  on appreciation of oral and documentary evidence  rendered a finding that the settlement deed dated  22.03.1977 and the will dated 23.03.1973 were  genuine and had been duly executed.  The respondents  either in their pleadings or in their evidence or in  the memorandum of grounds of second appeal did not  question the genuineness or due execution of the  settlement deed and the will.  No substantial  question of law was framed at the time of admission  of the appeal  or at a subsequent stage regarding  the due execution and the validity of the settlement  deed and the will.  The High Court could not go into  the questions which had not been raised by the  respondents either in their pleadings or in the  evidence or in the memorandum of grounds of second  appeal.  Jurisdiction of the High Court under  Section 100 CPC is limited to a substantial question  of law framed at the time of admission of the appeal  or at a subsequent stage if the High Court is  satisfied that such a question of law arises from  the facts found by the courts below.  The High Court  could not go into the question regarding the due  execution and the validity of the settlement deed or  the genuineness of the will which had not been  challenged by the respondents either in their  pleadings or in their evidence or in the memorandum  of grounds of second appeal.    As has been pointed  out earlier in Clause 3 of Section 100 the person  preferring the second appeal is required to  precisely state the substantial question of law  involved in the case and the High Court being  satisfied that a substantial question of law is  involved in the case shall formulate the said  question.  The appeal can be heard on the questions  so formulated or on any additional question of law  which may be framed later on if the Court is  satisfied that the case involves such question.  The  only question of law framed in this appeal was, as  to whether the properties at item nos.1 to 9, 22 to  26 and 29 of the Plaint A Schedule properties were  Joint Hindu Family properties available for  partition or not.  The High Court could hear the  appeal on the question of law formulated and not on  any other point without framing additional  substantial question of law which it did not do.   Since there was no substantial question of law  framed either at the time of the admission or later  regarding the validity and genuineness of the  settlement deed and the will the High Court did not  have the jurisdiction to set aside the findings  recorded by the courts below regarding  the validity or the genuineness of the will executed  by Mottaya Poosali.  The findings recorded by the  High Court regarding the validity and genuineness of  the will are thus vitiated and cannot be sustained.

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       For the reasons stated above, this appeal is  allowed and the judgment under appeal is set aside  and that of the first appellate court is restored.   There shall be no order as to costs.